Office of the Attorney General
State of Texas

Re: Whether a commissioners court may authorize a justice of
the peace to retain a portion of assessed fines for the purpose
of funding additional positions (RQ-1851)

Dear Ms. Sanchez-Vera:

You ask whether a justice of the peace may, with the
authorization and approval of the commissioners court, assess a
$50 fine in a Class C misdemeanor "bad check" case and retain a
portion of the fine to pay the salary of an additional employee
in his office.

You advise that a justice of the peace "is swamped with hot
checks under $20.00" and the commissioners court refuses to
provide additional help for the office. The justice requests the
authorization and approval of the commissioners court to assess
each hot check violator a fine of $50 and retain a portion of the
fine to pay the salary of an additional employee for his office.

Section 112.052 of the Local Government Code provides that a
fine imposed by a justice of the peace shall be charged against
the justice. Subsection (b) of section 112.052 provides that the
justice may discharge the indebtedness by filing a county
treasurer's receipt for the amount with the county clerk, showing
to the satisfaction of the commissioners court that the justice
has used due diligence in an attempt to collect the fine, or
showing that the fine has been established by imprisonment or
labor. [FN1]

Commissioners courts may exercise only such powers as are
specifically conferred upon them by the constitution or the
statutes. Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex.1948);
see Tex. Const. art. V, s 18. Neither the constitution nor the
statutes empower the commissioners court with authority to allow
a justice of the peace to retain a portion of fines assessed to
hire an additional employee.

To permit a justice of the peace to assess a minimum fine of
$50 in every Class C misdemeanor hot check case to pay the salary
of an employee would also violate the United States and Texas
Constitutions. Section 12.23 of the Penal Code provides that a
person adjudged guilty of a Class C misdemeanor shall be punished
by a fine not to exceed $200. The system under consideration
would make the penalty in a Class C misdemeanor hot check case in
Jim Wells County a fine of not less than $50 nor more than $200.
In Attorney General Opinion JM-880 (1988) a statute allowing a
commissioners court to set fees in misdemeanor cases was found
unconstitutional. Attorney General Opinion JM-880 stated:

In Texas, costs in misdemeanor criminal cases are assessed as
part of the punishment. Ex parte Carson, 159 S.W.2d 126
(Tex.Crim.App.1942); Ex parte Mann, 46 S.W. 828
(Tex.Crim.App.1898). See also Attorney General Opinion JM-443
(1986). Cf. United States v. Palmer, 809 F.2d 1504 (11th
Cir.1987) (holding imposition of costs as punishment to be
constitutional). A law allowing different costs to be assessed in
different counties for the same penal offense would have the
effect of allowing the penalty for state- defined crimes to vary
from county to county and would violate both 'due process' and
'equal protection' constitutional rights. U.S. Const., 5th
Amend., 14th Amend.; Tex. Const., art. I ss 3, 19; Ex parte
Carson, supra. See Memet v. State, 642 S.W.2d 518 (Tex.App.--Houston [14th Dist.] 1982, pet. ref'd). See also Ex Parte
Ferguson, 132 S.W.2d 408 (Tex.Crim.App.1939); Ex parte Sizemore,
8 S.W.2d 134 (Tex.Crim.App.1928). (Emphasis added.)

Id. at 3. Assessment of a minimum $50 fine in every Class C
misdemeanor hot check case in order to defray the cost of an
additional employee would result in the penalty for a state
defined crime to be different in Jim Wells County than it is in
other counties and would violate both "due process" and "equal
protection" constitutional rights.

SUMMARY

A county commissioners court may not authorize a justice of
the peace to retain a portion of assessed fines for the purposes
of funding an additional employee.